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IN THE UNITED STATES COURT OF APPEALS


FOR THE FIFTH CIRCUIT
_____________________
No. 15-70035
_____________________
RAPHAEL HOLIDAY,
Petitioner-Appellant,
v.
WILLIAM STEPHENS, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee,
--------------------Appeal from the United States District Court for the
Southern District of Texas, Houston Division
4:11-cv-1696
--------------------UNOPPOSED MOTION TO DISMISS APPEAL
TO THE HONORABLE CHIEF JUDGE AND JUDGES OF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT:
Come now SETH H. KRETZER and JAMES VOLBERDING, CJA
Counsel for Mr. Holiday, and file this unopposed motion to dismiss the
appeal filed by pro bono counsel, Ms. Gretchen Sween, on grounds of
mootness. First, Mr. Holiday has already received everything he said he
wanted. To wit, Mr. Holiday wrote Judge Lake that he wanted a new lawyer;
Mr. Holiday has a new lawyer, Ms. Gretchen Sween. Although a periodic
University of Texas Law School adjunct legal writing professor, Ms. Sween

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repeatedly protested to Judge Lake that she is unqualified to write the


clemency petition about which she so vehemently protests its necessity in
her opening brief. See Sween Response, Doc. No. 41 at 1 (not statutorily
qualified to accept such appointment.) at 2 (Undersigned counsel is not, as
CJA Counsel urge, qualified by past experience to undertake representation
of Mr. Holiday for all purposes.), at 3 (explained that she herself was not
qualified to assume such a substitution.); Appendix Tab 3. We disagree. Ms.
Sween is perfectly capable of representing a death row inmate, as evidenced
by her request made in the opening brief filed November 2 seeking a stay of
execution (her second), a mark near the apex of capital litigation.
Second, and far more impactful for the (in)ability of Holiday to get
further relief from this Court, there is currently pending before the Board of
Pardons and Paroles (the Board) a clemency petition timely filed on behalf
of Mr. Holiday last week. This point is uncontroverted, as the following
letter (dated October 28, 2015) establishes:

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Indeed, the Madison County District Attorney, Mr. Brian Risinger,


filed the States response yesterday, November 2. The first page is
reproduced in part below:

Although we invited her repeatedly to contribute, or at least edit, the


clemency petition, Ms. Sween declined.
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As a preliminary matter, it is fairly clear from Ms. Sweens opening


brief that she does not like the clemency petition filed by Mr. Kretzer and
Mr. Volberding. But as a positive factual matter, this 20-page clemency
petition (146 pages with exhibits) presents, inter alia, (1) sworn testimony in
the form of affidavits from Holidays family documenting his empathetic
childhood abuse and familial dysfunction; (2) explains the residual doubt
about his guilt in light of the disputed scientific testimony germane to arson
on the issue of causation, which has always been at the center of this case,
and (3) makes a prudential utilitarian argument about the excessive cost and
low crime suppression value of the death penalty, citing extensively to a law
review article written by Ms. Sween. We asked her, in fact, to condense her
cogent utilitarian arguments for inclusion in the clemency petition. She
declined. We nevertheless attached her article as an exhibit to the petition for
the Boards consideration.
INTRODUCTION: MOOTNESS
Professor Means explains, some concrete and continuing injury must
exist if the action is to be maintained. Brian R. Means, Postconviction
Remedies, 8:1, p. 328 (West 2015). The alpha-and-omega of the instant
motion to dismiss rests on this baseline legal parameter. Mootness is the
doctrine of standing in a time frame. The requisite personal interest that must

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exist at the commencement of litigation (standing) must continue throughout


its existence (mootness). Ctr. for Individual Freedom v. Carmouche, 449
F.3d 655, 661 (5th Cir.2006) (quoting U.S. Parole Comm'n v. Geraghty, 445
U.S. 388, 397 (1980)). If a case has been rendered moot, a federal court has
no constitutional authority to resolve the issues that it presents. In re
Scruggs, 392 F.3d at 128. Therefore, before considering any other matters
raised by the parties, we are obliged to resolve the standing question as a
threshold matter of jurisdiction. Cole v. Gen. Motors Corp., 484 F.3d 717,
721 (5th Cir.2007).
Ms. Sweens decision to call us a mockery, Sweens Br, at 37,
suggests she dislikes the clemency petition we filed after informing Judge
Lake that we would do so and he relied on this fact in his order denying Ms.
Sweens motion for reconsideration. See Order, Doc. No. 45, p. 2; Appendix
Tab 6. But whatever derogatory term Ms. Sween chooses to use, nothing
changes the fact that a timely-filed clemency petition is on file, running 146
pages in length and presenting six diverse grounds for relief, as well as a law
review article authored by Ms. Sween. The State has responded to the
clemency petition. And Ms. Sween is still welcome to assist us in the filing
of an amended clemency petition, though she has repeatedly declined to do
so in written communications to the undersigned counsel. Moreover, just as

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Judge Lake noted in his October 26 order denying reconsideration, Ms.


Sween provides this Court with not a single non-frivolous reason for
clemency, much less one we have not provided to the Board. See Order of
District Court, Doc. No. 45, p. 2 ; Appendix Tab 6.
WE MAKE NO PERSONAL ATTACKS ON MS. SWEEN
At the outset, Mr. Kretzer and Mr. Volberding wish to make as clear
as they possibly can to this Court that they do not desire to reciprocate in the
instant motion to dismiss any of the acerbic personal attacks Ms. Sween
levels against us in her opening brief. However, in order to fulfill our duty
of candor to the Court in support of the mootness argument, we must
respond to certain of her statements that are most charitably described as
counter-factual.
This necessity derives, in part, from the observation that Ms. Sweens
Appendix does not include any of Judge Lakes written orders. Fifth Circuit
Local Rule 30.1.4(e) lists as a mandatory content to Record Excerpts:
The judgment or interlocutory order appealed. Perhaps because Judge
Lakes written orders so thoroughly contradict the abuse of discretion
ascribed to him that this basic requirement of appellate brief writing was
avoided.

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IT IS IMPOSSIBLE TO COUNTENANCE MS. SWEENS NOVEL LEGAL


ARGUMENT THAT GOVERNOR ABBOTT LACKS THE POWER TO CONSIDER
CLEMENCY APPLICATIONS
Ms. Sween does not like our clemency petition, but nowhere in her
50-page opening brief does she actually ever explain what she dislikes about
it in terms of alternative arguments she wishes had otherwise been made. As
best we can tell, Ms. Sween believes that Governor Greg Abbotts elevation
to the Governors Mansion from his prior position as the Texas Attorney
General constitutes a legal basis to challenge his legal authority to grant or
deny clemency. These observations were made, however, before lead
counsel for the State of Texas in Mr. Holidays federal habeas corpus
proceedings, Attorney General Greg Abbott, became the governor thus
assuming a position that would permit him to decide Mr. Holidays
clemency application. Sweens Br. at 7, n.2.
It is not clear to us how insulting Governor Abbott is likely to
persuade him in Holidays favor, but Ms. Sween refused to even look at the
clemency petition before we filed it, much less edit it. Further, Ms. Sween
fails to address the obvious question: if Governor Abbott is somehow
disqualified, then who is qualified to make the decision for him? In our
professional opinion, Ms. Sweens contention that the Governor has been
functionally stripped of a legal power afforded by Texas Constitution

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qualifies as frivolous, and one we cannot justify. As an aside, this is


probably this is why no one ever thought to advance this legal theory when
Mark White or Price Daniel were elevated directly from Texas Attorney
General to Governor.
MS. SWEEN REGRETTABLY OMITS MR. KRETZERS AUGUST 14 COURT
APPEARANCE IN MADISON COUNTY WITH MR. HOLIDAY
According to Ms. Sweens chronological narrative, we stopped
working on Holidays case June 30. This could not be further from the truth.
On page 7 of her brief, Ms. Sween ominously underlines June 30, 2015
which is, as she correctly states, the day after the Supreme Court denied
certiorari. But few sentences are as misleading as the one found on page 8:
Meanwhile, Mr. Holiday was scheduled for execution on November 18,
2015. (emphasis added).
Executions are not set through some vaporous meanwhile. As Mr.
Kretzer explained in his two responses to Holidays letters to Judge Lake,
see Doc. Nos. 32 and 34 (both of which Ms. Sween certainly saw since she
quotes other portions of these documents), on August 14, Mr. Kretzer drove
to Madison County and represented Holiday at the hearing in which the
presiding state judge entered the death warrant. Mr. Kretzer was not a
bystander. Before the hearing, Mr. Kretzer and Mr. Volberding discussed
options and procedures and how to handle the hearing. Mr. Kretzer called
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both trial lawyers, Messrs. Blazek and Carter, and advised them when and
where the hearing was set. The three lawyers collectively visited with
Holiday for an hour before and after the hearing, talking with him about his
circumstances and the procedures at hand. Immediately after the hearing,
Holiday was taken back to Polunsky Unit. Meanwhile, Messrs. Kretzer,
Carter, and Blazek went across the street from the courthouse to the town
square and met for another hour to discuss possible issues for a successor
writ.
Ms. Sween does not mention this.

She certainly knows who

represented Holiday in Madison County, because this was mentioned twice


(in Doc. Nos. 32 and 34) filed long before she filled her opening brief. True,
Ms. Sween has no reason to know that the three lawyers met at length in the
town square (partially because she has never phoned us before, or after, she
filed her Notice of Appeal, and therefore never asked), but the reality of
Kretzers mid-August court appearance with Holiday is one of public record
and was mentioned in both responses to Holidays letters to Judge Lake.
The only logical (and unfortunate) conclusion is that August 14 was
six weeks after June 30. This fact of continuing representation was
orthogonal to her narrative of a June 30 cutoff date after which we stopped
working, so it was swept away in the meanwhile.

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Nor did we lay supine after the death warrant was signed on August
14. We would have eagerly filed a successor writ had meritorious grounds to
do so presented themselves. Unfortunately, no such grounds have
materialized.
To be clear: we looked. For example, in late September, the Texas
Forensic Science Commission sent us the following results of their
retroactive review of the arson issues in Holidays case, which is reproduced
below in relevant part:

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Partially in response to this letter, we reviewed our files and the


record. We looked for some means of a successor writ asserting the newly
discovered evidence safety valve of Texas Code of Criminal Procedure
article 11.071, Sec. 5(e). Despite our best efforts, we disappointingly could
not identify a non-frivolous basis for a successor writ along this line.
Apparently, nor could Ms. Sween, since she has repeatedly stated that her
duties extend only to filing appeal of denial of Holidays request for a new
lawyer (despite the reality of her being a new lawyer on the case).
WE DID NOT THWART HOLIDAYS EFFORTS IN ANY WAY
One of the most blunderbuss statements in Ms. Sweens opening brief
is the repeated contention that we thwarted Holidays efforts to obtain new
counsel after telling him he was free to do so. Sweens Br. at 20, 34, 37, and
42. To the contrary, over this past summer, we have engaged in frequent
conversations or email with Holidays mother, as well as lawyers she has
contacted on his behalf. Until Ms. Sween filed her Notice of Appeal (but,
noticeably, she never filed a Notice of Appearance in the District Court) no
lawyer ever told us he or she was signing on to Holidays case. Nor did
anyone ever tell us he or she would do so if we withdrew. We received no
phone call, letter, or email from Ms. Sween before her intervention. She has
provided neither us, nor Judge Lake, nor this Court, any retainer

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agreement signed by Mr. Holiday authorizing her intervention, and certainly


not one in which she provided a Texas Disciplinary Rules of Professional
Conduct 1.01 and 1.05 advisory to Mr. Holiday that she was unqualified to
represent a death row inmate at his current stage in the proceedings, or one
authorizing her to disclose his privileged communication with his CJA
attorneys to the Attorney General, as she did by attaching these documents
to her motion to reconsider in the District Court. Query where is any
document of this kind, dated and signed by Holiday prior to her
intervention?
LOOK BEHIND MS. SWEENS ELLIPSIS ON PAGE 13 AND THIS COURT WILL
FIND HER MOTION TO GET A REFUND OF THE $505 WHICH SHE PAID
ONLY AFTER STATING TO THE DISTRICT COURT THAT HOLIDAY WAS NOT
PROCEEDING IN FORMA PAUPERIS
In her motion to reconsider, Ms. Sween attached as Exhibit 2 an email
Mr. Kretzer sent Ms. Sween 36 minutes after she filed her Notice of Appeal:

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Yet on page 13 of her opening brief, one sees a factual contortion such
that the email has become excerpted:

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Numbers are stubborn things, and so are email time-stamps. When


Ms. Sween writes later that same day she really means that she filed her
notice of appeal at 9:55 a.m. and Kretzer replied at 10:31 a.m.
More specious is her ellipsis. In her brief, Ms. Sween presents the text
I do not believe he can have both at the same time as a discreet sentence.
But in the actual email, this is clearly a new paragraph, and immediately
following is the statement, since you paid the $505 filing fee I take it he is
not proceeding in forma pauperis anymore.
This is significant, because when one files an appeal, the ECF System
asks if the filer is proceeding in forma pauperis. If the filer checks yes,
then the $505 filing fee is waived. Ms. Sween saw this question and
answered no; we necessarily know this because she paid the $505 filing
fee, as Mr. Kretzer noted in his initial email that Ms. Sween subsequently
edited from its native format when she wrote her opening appellate brief.
Mr. Kretzer and Mr. Volberding are very conscious of the CJA
requirement that a litigant not have appointed and retained counsel at the
same time; this is why every CJA20 and CJA30 voucher requires us to swear
under penalty of perjury if we know of anyone who has received a thing of
value in connection with a case. Indeed, this was the primary argument in
our motion to substitute:

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Doc. No. 37, at p. 2; Appendix Tab 1.


As best we can tell, Ms. Sween agrees, because she soon thereafter
filed a motion in the district court to get her $505 back, Doc. No. 38;
Appendix Tab 7, and apologized to the court personnel. Doc. No. 41, p.
10, n.4; Appendix Tab 3.
Kretzer and Volberding filed their motion to substitute Ms. Sween in
their place not because they wanted finally to throw Holiday off the side of
their ship, but out of concern that to continue otherwise would run afoul of
the dictates of the CJA. Moreover, it appeared (at least at the time) that to
substitute Ms. Sween (again, the only new lawyer who ever showed up for
Holiday despite her vague assertion that we fought off this army of other
unnamed lawyers who wanted to do so) would moot the instant appeal by
giving Holiday what he asked for originally: a different lawyer.

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Doc. No. 37, at 2; Appendix Tab 1.


It was only later that Ms. Sween self-exclaimed her unwillingness, or
inability, to do the very work she simultaneously contended was so essential.
Judge Lake disallowed the requested substitution only because Ms.
Sween took the position that she was unwilling to do the capital habeas work
required at Holidays current stage in the proceedings:

Doc. No. 40. at 2; Appendix Tab 2.


In sum, it is a little hard to see how we thwarted the imaginary
lawyers who never signed on to Holidays case, pro bono or otherwise. To

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the contrary, within 36 minutes of a new lawyer showing up (but never


entering a Notice of Appearance) Kretzer emailed to ask how she wanted the
file delivered so she could do her work and earnestly wished her good
luck! representing a client we have known for nearly five years. Had Ms.
Sween accepted the offer, Mr. Kretzer would have mailed the file that same
day. It is nice that Mr. Sween subsequently claimed to be retained pro bono
for a limited purpose, but the unalloyed reality is that she stated that she
was not seeking IFP status when originally prompted by the ECF system to
make this binary choice, and nothing about making a $505 payment seemed
to register otherwise.
MS. SWEENS AVERSION TO THE AFTERNOON OF OCTOBER 29, 2015
SHEDS MORE HEAT THAN IT DOES LIGHT
On page 17, Ms. Sween states that some unnamed representative of
hers met with Holiday who told the representative that he had not seen the
clemency petition. Agreed. The last line in the Certificate of Service on the
clemency petition states rather clearly that Kretzer and Volberding would
hand-deliver to Mr. Holiday on October 30:

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When Mr. Kretzer and Volberding went to Polunsky to see Mr.


Holiday on October 30, he refused to leave his cell. We were there to discuss
the case with him, and talk with him about the opportunity to supplement his
clemency petition during the allowed seven-day supplementation period.
Even though he would not see us, we still did not abandon our client, but
rather had the petition bound and mailed directly. Lest another unnamed
representative or anyone else contend that we are making this up, the
receipts for this service (both dated October 30) are reproduced on the
following page:
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Before moving on, it is worthwhile to pause and consider the negative


affects Ms. Sweens actions have elicited. Before her intervention, we had a

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cordial and productive relationship with our client of nearly five years. The
record does not indicate a single prior complaint from Holiday to Judge
Lake, or to this Court, about his CJA lawyers during that multi-year period.
Mr. Kretzer met with Holiday periodically at Polunsky, and both
attorneys corresponded regularly with updates and information. Whatever
Ms. Sween, or her unnamed representative, told Raphael during her
private visits with our client has triggered such a profound impact on him
that he would rather stay in his small prison cage, where he spends 23 hours
per day, rather than leave for an hour to visit with the licensed attorneys who
possess the ability to communicate with the authorities who might be able to
influence his fate. While Texas Disciplinary Rule of Professional Conduct
4.02(d), Communication with One Represented by Counsel, allows an
attorney to respond to a represented person who sends a letter asking
questions, Ms. Sween appears to have acted far beyond any reasonable
interpretation of Rule 4.02. She evidently used one or two letters Holiday
sent to others to justify meeting privately with him; initiated a separate
attorney-client relationship at odds with his existing ones; interviewed him
about the facts of the offense; obtained, read, and published his privileged
communications with his attorneys in an ECF filing; and instructed one or
more unnamed representatives to see him. If this is the new ethical norm,

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the same scenario will be seen from now on in this and other courts in every
capital habeas case when an execution dates draw near.
WHY IS MS. SWEEN FIXATED ON CLIFTON WILLIAMS?
Clifton Williams is another inmate on death row who won a lastminute stay from the Texas Court of Criminal Appeals in July when the state
produced new evidence the day before the execution. This comes up only
because, in response to Holidays motion for a new lawyer, Kretzer used this
is an example of how neither he or Volberding would hesitate to file a
successor writ were non-frivolous grounds to do so to present themselves.
From this rather innocuous example, the personal antipathy of Ms.
Sween (who Mr. Kretzer knows from law school and of whom Mr.
Volberding had never heard) towards Kretzer and Volberding has exploded
to the point that she has envisaged a scenario by which they represented a
fraud to Judge Lake about the stay. Judge Lake twice graciously ignored this
ill-informed accusation, but since it occupies so much of the opening brief
(see pages 15, 29, 30, and 32), we feel professionally obligated to set the
record straight.
Clifton Williams lost his petition for writ of certiorari. The state judge
informed us that she wished to conduct a formal execution date hearing. We
informed her that as we were CJA appointed counsel, she should appoint one

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of the local attorneys for this hearing.

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The state judge appointed Jim

Huggler, an experienced and well-regarded Tyler attorney. The state court


set Williamss execution slightly more than 30 days off, for July 16.
On July 15, the day before the execution, the Attorney General sent
Mr. Huggler a similar letter informing of possible state DNA data base
errors. Unlike in Holidays arson case, Williamss trial did rely on DNA
testing.
By phone and a flurry of emails we discussed the situation with Mr.
Huggler. He filed a motion to stay in the trial court, which took no action,
then in the Court of Criminal Appeals. Meanwhile, as Williamss CJA
attorneys, we were in constant contact with both this Courts Conference
Attorney, Mr. Joe St. Amant, other members of the Fifth Circuit staff, and
Ms. Mara Silver, who was at the time the capital clerk in United States
Supreme Court1 with regards to the federal pleadings (with supporting
record quotes to DNA trial testimony) we spent urgent hours writing and
were about to file simultaneously in the District Court, Fifth Circuit, and
Supreme Court had the CCA not ruled favorably. This is hardly a secret to
this Court; the Fifth Circuit paid our vouchers for this emergency last-minute
work several weeks ago.
Ms. Silver is currently on maternity leave, but we have the contact information for the
person acting in her absence should the need to contact this staff present itself.
1

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It makes no difference to Raphael Holiday if Clifton Williams had


been executed, set free, or obtained a new trial. Nevertheless, Ms. Sween
insists on repeatedly accusing us of lying about Mr. Williams. This ad
hominem personal attack (about a stay granted last summer to an inmate
with no connection to Holidays case whatsoever) serves to illustrate further
the mootness of the appeal filed November 2.
CONCLUSION
Mr. Holiday has a clemency petition on file and pending before the
Texas Board of Pardons and Paroles and the Governor. He also has a new
lawyer, Ms. Sween, who refused to edit, or even look at this clemency
petition, before it was filed, despite serial invitations. She remains free to
help with an amended petition for clemency while there is still time, but
repeatedly declines our offers to do so.
No matter how much Ms. Sween chooses to insult CJA counsel with
words like mockery, her legal argument reduces to umbrage that Mr.
Kretzer and Mr. Volberding are of the informed professional belief that
clemency has next to zero chance of success in a case such as Holidays.
Only two capital clemency petitions in Texas have been granted since 1994.
Both involved circumstances we do not have here. But whatever remote
chance of success a clemency petition might have, Holiday is now fully

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availed of this opportunity. As such, the appeal filed by Ms. Sween on


November 2 must be dismissed as moot.
Dismissal should not end the matter. On the subject of any potential
sanction, it is difficult to imagine a more frivolous set of pleadings than that
filed in the opening brief. Ms. Sween has long been affiliated the University
of Texas School of Law and its Capital Punishment Clinic. She has
advocated for amicus in capital murder appeals. See, e.g., Dufour v. State, 69
So.3d 235 (2011); Trevino v. Thayler, No. 11-10139 (U.S. 2011). She has
spoken at capital punishment seminars. See Panel Speaker at U.T. School
Law Capital Punishment Center Symposium (Mar. 23, 2013). She published
a law review article on the topic. Gretchen Sween, Texas Aint Tuscany:
How a Truism Might Further Invigorate Contemporary Cost Arguments
for Death-Penalty Abolition, 41 AM. J. CRIM. L. 151 (Spring 2014). Yet,
Judge Lakes written orders were not even included in her Appendix as
required by the local rules.
Despite our enduring opinion that Ms. Sween is clearly one of the
best capital habeas practitioners in Texas (Doc. No. 44, p. 1; Appendix Tab
5), her opening brief is replete of factual misrepresentations and personal
invective that cannot, as a tactical matter, have any conceivable positive
benefit to Mr. Holiday. While this episode might be useful for an agenda to

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manufacture an issue for certiorari, it is creating distraction to two federal


courts (soon to be three), required CJA counsel to spend many hours over
several days responding to Ms. Sweens accusations of professional
misconduct, and most sadly, raised false hopes for a man facing execution
November 18 at 6 p.m.
Respectfully submitted this 4th day of November 2015,
/s/ James W. Volberding
James W. Volberding
VOLBERDING LAW OFFICES
100 E. Ferguson St., Suite 500
Tyler, TX 75702
James@jamesvolberding.com

/s/ Seth Kretzer


Seth Kretzer
LAW OFFICES OF SETH KRETZER
440 Louisiana Street, Suite 200
Houston, TX 77002
seth@kretzerfirm.com

(903) 597-6622 (direct)


(866) 398-6883 (fax)

(713) 775-3050 (direct)


(713) 224-2815 (fax)

COURT APPOINTED ATTORNEYS


FOR APPELLANT/PETITIONER
RAPHAEL HOLIDAY
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing
unopposed motion was forwarded to all counsel of record on this 4th day of
November 2015 through the ECF system.
/s/ Seth Kretzer
________________________
Seth Kretzer

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CERTIFICATE OF CONFERENCE
I certify that on November 2, 2015, I conferred with Ellen StewartKlein in the Office of the Attorney General about the motion to dismiss
Holidays appeal on the grounds of mootness, and she stated that she is
unopposed to dismissal of the appeal.
/s/ Seth Kretzer
________________________
Seth Kretzer

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